IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40939

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

EDUARDO RODRIGUEZ-SALAZAR, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.

REAVLEY, Circuit Judge:

The sentence of Appellant Rodriguez-Salazar was enhanced because of 

his prior conviction for the Texas crime of theft, determined by the district 

judge to be an aggravated felony. Appellant appeals only that sentence 

enhancement. We hold that the Texas law for theft without effective consent 

is in the same category as theft without consent, and affirm.

Background

Appellant Rodriguez pleaded guilty of being an alien present in the 

United States after deportation and conceded that he had been previously 

convicted of felony theft under Texas Penal Code § 31.03(a). That Texas theft 

statute states the offense as the appropriation of property “without the owner’s 

United States Court of Appeals

Fifth Circuit

FILED

September 30, 2014

Lyle W. Cayce

Clerk

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No. 13-40939

effective consent.” Tex. Penal Code § 31.03(b)(1). And the consent to temporary 

possession is not effective if it was induced by deception or coercion. The 

previous section, § 31.02, explains that Section 31.03 supersedes many 

separate offenses, such as theft, theft by false pretext, acquisition of property 

by threat, etc.

The district court enhanced the offense points eight points for appellant’s 

sentence because of the conviction for aggravated felony directed by guideline 

§ 2L1.2(b)(1)(C), aggravated felony being defined by the commentary and

8 U.S.C. § 1101(a)(43)(G) as “a theft offense (including receipt of stolen 

property).” 

This court has adopted this further definition: “‘theft offense (including 

receipt of stolen property)’ is a taking of property or an exercise of control over 

property without consent with the criminal intent to deprive the owner of 

rights and benefits of ownership, even if such deprivation is less than total or 

permanent.” Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007) (citations 

omitted).

Appellant insists that the Texas statute in defining theft to include the 

taking of property from the owner with consent induced through deception or 

coercion substantially changes the crime from generic theft that is the taking 

of property without the owner’s consent.

Our task is to determine whether the Texas offense is comparable to and 

categorically fits within the generic federal definition of the corresponding 

crime of theft. We must ask if the state would apply its statute to conduct that 

falls outside the generic definition of theft. Moncrieffe v. Holder, 133 S. Ct. 

1678, 1684-85 (2013).

Clearly the definition of theft we have followed does not limit the crime 

to consent withheld when a guilty person takes possession of the property from 

the owner. The withholding of consent is expressly extended to the time the 

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thief or embezzler exercises control of the property. The owner’s consent is 

comparable whether measured before or after the moment the property is 

transferred. We see no justification to carry that narrow distinction to change 

the generic theft crime.

Appellant replies that we are bound by prior precedent holding that 

generic theft is distinctly different from fraud because generic theft is 

committed by obtaining property without the victim’s consent whereas fraud 

is committed with the victim’s fraudulently obtained consent. The precedent 

offered is Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008). The decision 

there was that the New York conviction for bank fraud was an aggravated 

felony. The court did say that it would not have been true of a theft crime, but 

this question of a theft crime was not before the court and is not controlling 

precedent.

The Texas law that only affects this stage of withheld consent does not 

deviate from the generic crime of theft. In either case the owner denies consent 

to the wrongdoer who takes or exercises control of property.

AFFIRMED. The mandate to issue forthwith.

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SOUTHWICK, Circuit Judge, concurring.

While I agree with the result that the court reaches, I believe, 

respectfully, that a further explanation is necessary.

In determining the generic, contemporary meaning of an offense, the 

Supreme Court has suggested courts should consider the Model Penal Code, 

state codes, and a treatise. Taylor v. United States, 495 U.S. 575, 593, 598 & 

n.8 (1990). For the generic description of theft crimes, the Seventh Circuit 

used the broad definition in the Model Penal Code, which combines eight 

different traditional offenses including the use of deception: 

(1) theft by unlawful taking or disposition; (2) theft by deception; 

(3) theft by extortion; (4) theft of property lost, mislaid, or delivered 

by mistake; (5) receiving stolen property; (6) theft of services; (7) 

theft by failure to make required disposition of funds received; and 

(8) unauthorized use of automobiles and other vehicles. 

Hernandez-Mancilla v. I.N.S., 246 F.3d 1002, 1009 (7th Cir. 2001) 

(summarizing MODEL PENAL CODE §§ 223.2–223.9.). Specifically, the Model 

Penal Code provides that “[a] person is guilty of theft if he purposely obtains 

property of another by deception.” MODEL PENAL CODE § 223.3. The Seventh 

Circuit also employed Black’s Law Dictionary, which includes in its definition 

of theft the “[o]btaining by deception control over property . . . .” See 

Hernandez-Mancilla, 246 F.3d at 1007 (quoting BLACK’S LAW DICTIONARY 1477 

(6th ed. 1990)). 

In 2007, we relied on the Seventh Circuit’s Hernandez opinion when we 

stated the broad definition quoted in the majority’s opinion, namely, that the 

generic offense of theft is the “taking of property or an exercise of control over 

property without consent with the criminal intent to deprive the owner of 

rights and benefits of ownership, even if such deprivation is less than total or 

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permanent.” Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007) (quoting 

Hernandez-Mancilla, 246 F.3d at 1009). 

I do not see in our language just quoted from Burke the precise answer 

to the question of whether theft by deception is included within the 

contemporary, generic meaning of theft. The majority, likely clearer-eyed, 

does. I find it necessary to return to the analysis in the Seventh Circuit’s 

opinion to show that theft by deception is encompassed within the generic 

definition of theft. 

For these reasons, I agree with the majority that we must reject 

Rodriguez-Salazar’s argument that his conviction under the Texas Penal Code 

Section 31.03(a) does not qualify as an aggravated felony.

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